THANGAPPAN Vs. AMMALU NEITHIARAMMA

JUDGEMENT

(1.) THE only question arising for decision in this Second appeal is whether Ext A-1, Kaichit, dated November 21, 1916 evidences a mortgage as contended for the respondents, who were plaintiffs 2 and 3 in the suit or a kanam as contended for the appellant, who was the 6th defendant. THE two courts have answered this against the appellant.

(2.) EXT. A-1 was executed by Andi and Kottan who were the predecessors-in-interest of the appellant and may be referred to as the transferees, in favour of a member of the respondents' family which held the suit properties on verumpattom under a Devaswom to which they appertained on jenmom. EXT. A-1 purports to be the counter-part of a Karipanayam deed, executed on the same day in favour of the transferees. It recited a prior lease from the respondents' family to the transferees, with a premium of Rs. 200/-and an annual rent of 641 paras of paddy and Rs. 10, and further stated that, in order to pay renewal fees to the Devaswom, the respondents' family borrowed on the same day a sum of Rs. 400/- from the transferees; it provided that the transferees shall he in possession of the properties on karipanayam for ten years, for the 'karipanayam' amount of Rs. 600/- of which, the sum of Rs. 400/-borrowed was to carry no interest; the balance alone to carry interest as before. It also stipulated, that on the expiry of the term, the transferees shall surrender the properties on receipt of Rs. 600; but that, even before the expiry of the term, if the transferees so desired, they might surrender the properties on receipt of the karipanayam amount. The learned District Judge held, that this last stipulation amounted to a covenant, Entitling the transferees to compel the transferor to redeem the mortgage, and this was considered by him sufficient to hold, that EXT. A-1 evidenced a mortgage and not a kanam.

(3.) THE learned counsel strongly relied on the execution of Ext. A-1 counter-part in addition to the mortgage document, which it was stated, is not usual in the case of mortgages. A similar argument seems to have been considered, but was repelled in S. A. 146 of 1961 with the observation, that the execution of such counter-parts is a common feature in the case of possessory mortgages, especially where periodical payments are stipulated. It cannot also be ignored, that the stipulation in Ext. A-1 is, that the possession was to be on karipanayam, and it was not disputed, that karipanayam generally means possessory mortgage. It is no doubt true that two other indicia which were relied on by the learned District Judge, viz. , that part of the amount is not to carry interest and that the michavaram is not payable to the jenmi, however relevant under the definition in the Malabar Tenancy Act, 1929, are not of much importance in the context of the definition of kanam in the act; but this circumstance affords no justification for overlooking what are matters of substance, in judging the character of the transaction.